Allen, R v [2001] EWCA Crim 1607

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2001] EWCA Crim 1607Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10 th July 2001
Between
Allen, R v
Before
Lord Justice PotterMr Justice TomlinsonMr Justice McCombe
[1]This is an appeal against conviction following referral to the Court of Appeal by the Criminal Cases Review Commission under section 14(4) of the Criminal Appeal Act 1995. The appellant seeks leave to call fresh evidence in relation to various of the grounds of appeal.[2]The appellant was convicted of one count of robbery and sentenced to eight years imprisonment on 21 st June 1991 after a four day trial in the Crown Court at Newcastle-upon-Tyne before His Honour Judge Crawford and a jury. He was refused leave to appeal by the single judge on 7 th January 1992 and his renewed application for leave to appeal was dismissed by the Full Court on 11 th November 1994.[3]The appellant was originally indicted with three co-accused: Joseph Turbitt, George Stewart and Joseph Quinnin. However, the appellant absconded immediately prior to the original trial at which Stewart pleaded guilty to robbery, Turbitt was convicted of robbery and Quinnin was convicted of theft. Following the appellant's conviction he was sentenced to 8 years' imprisonment with 6 months' consecutive for breach of his bail.[4]The robbery took place on 1 st March 1990, shortly before 5.15pm, when Mr Purvis, a Post Office employee, was robbed of a mail bag and its contents. According to eye-witnesses there were three men involved in the robbery who escaped in a blue car. Following a radio transmission reporting the robbery at 5.15pm, police went to 21, Kirkwood, Borrowdon, at 5.30pm, where they found the blue car inside the garage with its engine still warm and, upon entering the house (which was Quinnin's), they found there the appellant, Turbitt and Stewart together with the proceeds of the robbery. The defence of the appellant was that he was there by chance, having arrived shortly before the police to visit Quinnin, who was a friend of his. He called alibi evidence as to his earlier movements. The issue for the jury was identity in a situation in which the eye-witnesses gave different descriptions and the victim, Mr Purvis, who was only able to describe the robber who physically attacked him, gave a description inconsistent with that of the appellant. The strength of the prosecution case depended almost entirely upon the arrest of the appellant in the company of the other robbers, an admission said to have been made at the time of such arrest, and a conversation in the cells between the appellant and Quinin following their arrest which was said to have been overheard by the custody officer on the day after the robbery. EVIDENCE Eye-witness accounts/Identification[5]Mr Purvis said that, after undertaking various tasks at Dudley Post Office, he left the post office with full bags of post. Earlier in his round he had placed a mailbag containing money in the front of the van in the position where the passenger seat is normally found but had been removed. Having approached his van he had put one bag into the rear and was about to load another when he felt a blow on his back. This caused him to fall forward and bump his arm. However, he recovered, turned round, and punched his attacker in the face with his right hand. Nothing was taken from him, but he heard the sound of breaking glass and someone at the front of the van. The bag in the front was later found to have been taken. His assailant fled to a waiting blue Datsun the registration number for which he wrote down. (As it emerged the car was in fact a Nissan). There were three men involved; his attacker, the man who broke the glass at the front of the van and the driver of the car. He described his attacker as in his late twenties, about his height (5'11") and wearing a blue ski anorak. In cross-examination he agreed that in his statement made shortly afterwards he described his attacker as about 5'10", proportionate build, mid to late twenties, short tidy fair hair and clean-shaven with no glasses. He said the area was poorly lit at the time. [It was not in dispute at the trial that the defendant was about 5'7", had dark hair and was wearing a heavy moustache, a police photograph taken within days being available.] Mr Purvis immediately reported the attack to the postmaster who called the police and gave them the number of the car recorded by Mr Purvis.[6]Mr and Mrs Larmough were in a parked car in the car park opposite the post office. Mrs Larmough's suspicions were aroused by the blue Nissan and a man pacing backwards and forwards near the post office who, after Mr Purvis had parked the van and gone inside the post office, crossed the road and looked in the van window. Mr Purvis having come out of the post office, the man smashed the window of the van and another man appeared on the scene who tried to pull bags out of Mr Purvis' hands and with whom he engaged in a tussle. The first man grabbed a bag out of the front and both men then ran to the blue car which drove off. The first man who smashed the window was wearing a black padded jacket with a hood on which there was a red and white stripe, bleached jeans and white shoes. However, she did not get a good look at the attacker whom she described as 35-40, 5'10" to 6' tall and of heavy build. Mr Larmough described the man who attacked the victim as wearing a light coloured ski jacket. He said he was stocky, not too tall, very broad shouldered and middle-aged. He described the tussle and how the first man had smashed the window and taken the mailbag.[7]A Mr Phillips also saw and described the incident, but without giving any useful identification evidence. The arrest of the appellant and his alleged admission .[8]DC Bower received a radio transmission of a robbery at 5.15pm and went with other plain-clothes police officers to 21, Kirkwood, Borrowdon, where they arrived at 5.30pm. Inside the garage they found the blue Nissan with a pick-axe handle protruding from under the front passenger seat, and they obtained confirmation over the radio that this was the vehicle involved in the robbery. DC Bower then went with DC White and DC Johnson to the house. As they entered the kitchen, the appellant approached the door and asked if `Joe' [Quinnin] was with them. DC Johnson identified themselves as police officers. The officers went in to the living room where Turbitt was crouched near the TV and Stewart was standing beside him. Both were rummaging in a sack. Turbitt shouted 'get out Geordie [Stewart], it's the police' and then leaped out the window. The appellant also tried to escape and DC Bower restrained him after a struggle during which he wrestled him to the floor. DC Bower said that he was arresting the appellant for robbery. The appellant said `Okay, I am caught, I am not going to struggle any more'. DC Bower stated in evidence that he then asked the appellant who attacked the postman and the appellant replied `I only hit him once'. DC Bower said that the post office bag, clothing and other items in the living room were not moved by him and they were later photographed in situ. When challenged in cross-examination about the circumstances of the arrest and the alleged admission, DC Bower denied that he had punched the appellant repeatedly during the incident. He said he had compiled his notebook and recorded the admission that the appellant had hit the postman at 7.45pm that night. He denied it was an invention. He agreed he had not asked the appellant to sign his notebook after he had recorded the admission but said it was because the appellant had gone to the hospital and then to a different police station and so was not there.[9]DC Johnson said he had felt the bonnet of the car in the garage and found it still warm. He confirmed the general circumstances of the arrest. He had arrested Stewart. He saw the struggle between DC Bower and the appellant and he said he had heard their conversation in which the appellant was asked who had attacked the postman and replied that he had only hit him once. He too had complied his notebook at 7.45pm and had not offered it to the appellant as he was not there. He denied inventing the reply with DC Bower. DC White arrested Turbitt after he crashed out of the window. He was wearing a light coloured anorak. However, he looked at the clothing in the room and found a black anorak with a red stripe inside the pocket of which there was a piece of metal tungsten carbide for breaking glass.[10]A Mrs Rowland said she had seen the blue Nissan on the drive at Quinnin's house at 21, Kirkwood, for some four weeks before the incident. On the day of the incident she saw Quinnin walking down Kirkwood at about 4.45pm with a man wearing a black, red-striped jacket heading towards the post office. She later saw the police searching the blue Nissan on the drive. The cell conversation[11]Sergeant Howland was the custody officer at the police station to which the appellant was taken on the 2 nd March, the day following the robbery. He said that at 5.55am, Quinnin requested a cup of tea and complained of being cold in his cell, so he was moved to the cell next to the appellant. Following a routine visit later, Sergeant Howland left the cell corridor and secured the door. When he was making his way to the charge room he heard voices in the male cell corridor which he had just left and recognised them as those of Quinnin and Allan. Accordingly, he returned to the cell corridor and overheard a conversation in progress which, on his return to the charge room, he recorded in the appellant's Custody Record. It was recorded as follows: Quinnin: You were being watched. Allan: When? Quinnin: Most of the time. Allan: Where, at the house? Quinnin: Yes. Allan: Then they will have had my flat under surveillance. Quinnin: What, your place? Allan: Yes. Allan: It's not as bad as you think it's only a theft Quinnin: I was told it was a robbery. Allan: No, it's only someone having something snatched from his hand. Quinnin: But they said it was an Armed Robbery. Allan: No, someone is saying that they were hit when it was done, but it was just that something was snatched from their hand. Quinnin; Did you have anything with you? Allan: What? Quinnin: Were you tooled up? Allan: No, I'm not saying anything else in case someone's listening.[12]Sergeant Howland was cross-examined vigorously to the effect that the cell conversation had been concocted to bolster the case against the appellant, which he denied. He said it was easy to overhear what was said in adjoining cells and only a slight raising of the voice was necessary. He said he had recorded what he had heard. He agreed that he had also recorded on 1 st March at 6.10pm (which he said was after he had heard the cell conversation) that there was insufficient evidence to charge the appellant. He said that was because the appellant had not been interviewed at that stage. The Interviews[13]DS Gibson was the interviewing officer. He interviewed the appellant in the presence of his solicitor at the police station. In the first interview at 10.39pm on the day of the robbery, the appellant gave a series of `no reply' answers when asked for an explanation of his presence in the house at 21, Kirkwood, with Turbitt, Stewart and the proceeds of the robbery. When asked about the clothes he was wearing that day he said that they were the same as those he had on at interview (blue denim jeans, white training shoes, blue and brown multi-coloured jumper over a blue shirt) apart from his sheepskin coat. Asked where that was, he said he did not know, he had left it somewhere. Asked various questions to find out where he had been that afternoon and whom he had been with, he gave a series of no reply answers.[14]Finally asked whether he had any explanation as to why, so soon after the offence where the bag was stolen he was arrested in the house with two other men with the stolen property, he said `I didn't know what I was being arrested for, I thought mebby (sic) it was theft, that's all I can say'.[15]At the interview, he was not questioned about, nor was any mention made of, his alleged admission on arrest or the overheard cell conversation.[16]In a second interview next day, the appellant gave a series of no reply answers when questioned about the robbery and its surrounding circumstances. A copy of the record of the cell conversation made by Sergeant Howland was read over to him and he was asked if he had any comment to make. Ágain, he said `no reply'. DS Gibson denied a suggestion that he had conspired with Sergeant Howland to fabricate the cell admission, saying that he had never met Sergeant Howland before that day.[17]Again, despite detailed questioning as to the appellant's involvement in the robbery, it was never put to him that he had made an admission of involvement to DC Bower at the time of his arrest. DS Gibson was asked in cross-examination why he had not done so, but apparently had no explanation. Forensic Evidence[18]Valerie Whitford, a forensic scientist, gave evidence relating to four lifts taken from the Nissan car seats (rear nearside, front passenger and rear offside). Three lifts were of suede-like tufts which matched the outer side of the appellant's suede coat. One lift was of a single maroon fibre matching the maroon fibre of the appellant's jumper. In cross-examination Mrs Whitford stated that fibres could transfer by floating in the air; also that the tufts could have come from a similar but different coat. She said that the maroon fibres were of a common type THE DEFENCE EVIDENCE[19]The appellant gave evidence of his whereabouts and movements at the time of the incident. He said he had known Mr Quinnin for about three years and had been going to go to the dogs with him that day. He described spending time in two pubs that afternoon with a man he called Hannah, but whose name he had recently found out was Mr Brewerton. He went to Borrowdon at about 5pm and called into the Halfway House public house to see if Mr Qunnin was there. He stayed for twenty minutes and then walked to Mr Quinnin's house. He was wearing a sheepskin coat about two sizes too big for him. He also had on a green jumper, a pair of dark blue woollen gloves, jeans and trainers. At the house he knocked and then entered the kitchen. Stewart, whom he knew as a man with previous convictions, opened the door and the appellant walked into the living room, took off his sheepskin coat and asked where Joe was. He then saw things strewn all over the floor and immediately felt that there was something wrong and said he would wait for Joe in the kitchen. After a matter of minutes, he saw two people walking up the path. When he saw them he asked if Joe was with them. He heard the words 'police officers' and was then pushed into the kitchen by DC Bower who was shouting, lashing out and telling him to lie on the floor. He asked what was going on and got down on the floor feeling blows to the side of his face which required two stitches.[20]The appellant said he did not know that there was a robbery at that time. He was kept in the police station and he did not speak to Quinnin in the cells. In interview he exercised his right of silence because he did not realise that he could give his side of the story without implicating anyone. He referred to his previous convictions between the ages of seventeen and twenty-five. He was now thirty-nine. He had been inside the blue Nissan before when he had had a lift from Mr Quinnin who told him it was hire-purchase car. On that occasion he had sat at the front seat. He said he had wanted to go on an identification parade. In cross-examination he repeated that he had been in the car before. He said he had left his coat in the living room in spite of thinking that something was amiss because he had taken it off in there and just left it. He said he knew nothing about there being six coats in all in the room (it was the prosecution case that the six coats were the three worn by the robbers at the time of the robbery plus a change of coat for each robber) and he did not know the reason for the absence of the third man apparently involved in the robbery or whether that man had used the house as a safe-house or not. So far as the forensic evidence was concerned, he stated he had been a passenger in Quinnin's car only a few days before.[21]Joseph Brewerton described meeting the appellant in the Queen's pub at about 3.20pm and being with him for about an hour. He had not seen the appellant again till late in the summer, after the appellant had been released on bail, when the appellant asked him to be his witness. He said he hardly knew the appellant with whom he had been drinking on some three or four occasions. He admitted he had visited the appellant whilst on remand in prison but said that was because he had not known who his solicitor was. He was able to recall the details of the day because he had heard that the appellant had been arrested three days later which gave him cause to remember it. THE NATURE OF THE PROSECUTION CASE[22]As already noted at paragraph 3 above, the appellant was originally to have been tried together with Turbitt, Stewart and Quinnin at a trial in which it appears that the Crown case was that the appellant was the attacker, Turbitt (who was the owner of the black hooded jacket with a red stripe spoken to by Mrs Larmouth as worn by the man who broke the window of the post van and by Mrs Rowland as worn by the man she had seen with Quinnin some twenty-minutes earlier) was the man who broke the van window and took the bag, and Stewart was the driver waiting in the Nissan car. Quinnin was an accessory, not present at the scene, but who had made his house available as a safe house to which the proceeds could be taken . On that basis, Turbitt and Stewart were found guilty of robbery and Quinnin was found guilty of theft.[23]When the appellant was later re-arrested and tried on his own, the Crown presented the case consistently with the earlier trial and conducted it throughout on the basis that the appellant was the attacker. They did not advance the case, or rely on any `fall back' position, that, whether or not the appellant was the attacker, the jury could be satisfied that he was a participant by reason of his presence at Quinnin's house at the division of the spoils less than half an hour later. The case was advanced by the Crown and summed-up by the judge on the basis that, if the jury were not sure that the appellant was the man who struck Mr Purvis and struggled with him at the back of his post van, they should find him not guilty.[24]So far as the Crown was concerned, the difficulty with that approach was of course that, in their witness statements and the evidence which they gave at the appellant's trial, none of the eye-witnesses to the robbery was able to identify the appellant as the attacker and Mr Purvis, who was the only person who purported to have a clear view of his attacker, gave a description almost completely at odds with the appearance of the appellant: see paragraph 5 above. The appellant was advancing an innocent explanation for what he asserted was his chance presence at the house of his friend Quinnin, and the forensic evidence as to fibres in the car was readily explicable if (and there was no contradiction available) the appellant had, as he stated in evidence, travelled in it in the days leading up to the robbery. Thus, the only evidence unequivocally linking the appellant with the robbery was his alleged admission at the time of his arrest, supported by the overheard cell conversation which appeared to reveal inside knowledge about the robbery. The alleged admission was thus a key part of the prosecution case. THE GROUNDS OF APPEAL[25]This matter comes before the court upon a reference by the Criminal Cases Review Commission, based upon their review of a number of matters arising since trial including, in particular,(i) the existence of a signed statement by Stewart (now deceased) said to undermine the reliability of the appellant's conviction;(ii) further evidence from the forensic scientist Miss Whitford qualifying her evidence at trial and raising the possibility of contamination of the car by the policeman who handled the appellant's sheepskin jacket at the scene before inspecting the inside of the car; and(iii) evidence from a Professor Coultard, an expert in linguistics, as to the capacity of witnesses (in this case Sergeant Howland, the custody officer) for verbatim recollection of conversations, the effect of which evidence is said to cast doubt on the reliability of the purported recollection and record by Sergeant Howland of the cell conversation in the form set out at paragraph 11 above.[26]In the event, none of these matters has figured large in the appeal as advanced by Mr Fitzgerald QC for the appellant. Mr Fitzgerald did not pursue the matter raised under (i). So far as (ii) is concerned, we have admitted the evidence of Miss Whitford in which she acknowledges that, in relation to her evidence at trial, she had not considered the possibility of secondary transfer of fibres from the appellant's clothing being unaware that an officer, or officers, had had contact both with the appellant's clothing and subsequently the car, before lifts were taken from the car for the purpose of forensic examination, thus diminishing any incriminatory effect of her evidence against the appellant.[27]So far as (iii) is concerned, we have not been prepared to admit the evidence of Professor Coultard and, in that respect, we can do no better than repeat the observations of this court when dismissing the appellant's application for leave to appeal out of time on the basis of Professor Coultard's evidence in 1994:
"We have considered the extracts from the evidence of the cross-examination, in particular that of Sergeant Howland, and the report of Doctor Coultard which is annexed to the grounds of appeal. Nowhere do we see that Sergeant Howland claimed that what he recorded was word for word what was said. That would be unreal. It must have been obvious to the jury that what was recorded by Sergeant Howland was the best possible record he could make after a very short period of time, and it was, so far as he could recollect it, the gist of what he heard. It was substantially challenged, but the jury must have accepted the honesty and impression made by Sergeant Howland. The position is, therefore, that we do not regard this evidence (if it be expert evidence) as containing anything which an ordinary jury does not appreciate, or anything which could not have been suggested at the trial. There is nothing in that ground. It does not satisfy the requirements of section 23(2) of the Criminal Appeal Act 1968. Nor do we find it necessary or expedient to order its admission under sub-section (1)."
[28]Finally, so far as fresh evidence is concerned, we have admitted, unopposed by the Crown, various documents which go to the principal ground of appeal, in particular statements as to the recollection of trial counsel, the notebooks of DC Johnson and DC Bowers and certain notes of interview with Mr Turbitt and the Custody Record. The alleged admission on arrest[29]The principal matter upon which Mr Fitzgerald has concentrated before us has been that set out in Grounds 1 and 2 of the Grounds of Appeal, namely that the appellant's alleged admission following his arrest, which was made without prior caution and in breach of the Codes of Practice under the Police and Criminal Evidence Act 1984 ("PACE") should have been excluded under s.76 or s.78 of PACE. In this respect Mr Fitzgerald recognises that no application was made for the exclusion of the admission by defence counsel but submits, correctly in our view, that, if the court is satisfied that such an application should obviously have been made and, if made, should have been granted and, if the court further takes the view that the conviction is thereby rendered unsafe, it should allow the appeal. In this connection whereas there have been a number of appeals in this court which have considered the level of incompetence on the part of an appellant's legal advisers which it may be necessary to establish before the court will be prepared to go behind their tactical decisions or to permit reliance upon their omissions or oversights, it seems to us, as it seemed to this court in the recent decision in R -v- Nangle (No. 1998/06611/W4) 1st November 2000 at paragraph 24, that:
"In any event, in the light of the present requirement under the European Convention on Human Rights `flagrant incompetence' may no longer be the appropriate measure of when this court will quash a conviction. What Article 6 requires in this context is that the hearing of the charges against an accused shall be fair. If the conduct of the legal advisers has been such that the objective is not met, then this court may be compelled to intervene."
[30]See the similar approach taken in R -v- Raphaie (No. 91/4581/W3), 9 th May 1996, underlining the necessity for this court to approach the matter simply upon the basis of the safety or otherwise of the conviction and repeating the observations of this court in R -v- Clinton [1993] 1 WLR 1181 at 1188:
"It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the sub-section [s.2(1)A of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995]."
[31]In this particular case, in which privilege has been waived, defence counsel has, perhaps not surprisingly, had difficulty in remembering the circumstances in which, some ten years ago, he made his decision not to seek the exclusion of the alleged admission. When first asked in correspondence why he had made no application to exclude the alleged admission on arrest and the overheard cell conversation, he could not positively recall whether or not he had done so. However, doing the best he could so long after the event, he stated that the only reason he could advance for not challenging those matters in the absence of the jury was his judgement that it would have been highly unlikely for that particular judge to exercise his discretion in favour of the appellant upon so serious a charge. Asked to elaborate, he simply observed that he did not think that the failure to caution the appellant would result in the appellant's alleged admission being excluded, the appellant being `hardly a novice to offending' who had been arrested many times previously. So far as the overheard cell conversation was concerned, he stated that his view at the time was that such an application would fail and that all it would achieve would be to give the police a `dry run' at their evidence in a trial within a trial. In that respect he said his decision was a tactical one. Mr Fitzgerald has submitted, again rightly in our view, that whereas there may have been a valid tactical reason for not giving the police a dry run in relation to the cell conversation, there was nothing to be lost and much to be gained from seeking to exclude the alleged admission on arrest. The basis for that submission was of course already present in the statements and documents available and did not depend upon a voire dire . Even if the judge had proved as intractable as counsel appears to have expected, no disadvantage would be suffered, whereas, if the judge acceded to the application, the only direct evidence of the appellant's presence at the robbery, let alone that he was the person who attacked the postman, would have gone. The case would have rested upon the appellant's subsequent presence at Qunnin's house and the appropriate inference to be drawn from the overheard cell conversation. There was the further feature that, if the admission remained in and required (as it did) an attack on the credit of the arresting officers, the appellant's character would inevitably go in, whereas the attack on the ambiguous cell-block conversation would not necessarily involve such a result, depending on how it was handled.[32]Mr Fitzgerald has submitted that it would not (or certainly should not) have been a foregone conclusion that the judge would refuse an application for exclusion of the admission. As Mr Duff for the Crown has conceded, there is no doubt that the question alleged by the officer to have been asked by him of the appellant following his arrest, and as he was lying on the floor, was in flagrant breach of both the letter and spirit of PACE and Code C as then in force.[33]So far as s.76 of PACE is concerned, it is plain that the alleged admission followed arrest, after the appellant had been forcibly overcome, and was obtained in response to a question designed to elicit details of the offence from the appellant without any prior caution having been administered. Under s.76 it is for the prosecution to prove the reliability of the confession concerned. Quite apart from the inherent unlikelihood in the circumstances of the appellant freely (if at all) having made the admission relied on, the failure of the police even to put the admission to the appellant subsequently, despite thorough questioning at two interviews (one in the presence of his solicitor) seems to us to have placed a clear question mark over its reliability. As observed in R -v- Cheung (1992) 92 Cr App R 314 at 323:
"We remind ourselves that under section 76(1)(b) the onus is on the prosecution. In other words, if the challenged confession is to be admitted, the prosecution must prove to the court beyond reasonable doubt that the confession was not and might not have been obtained in consequence of anything said or done which was likely to render it unreliable. In our view the combination of the questioning of the appellant before allowing him access to a solicitor, the failure to record the answers immediately, the failure when the note of the interview had been made to show it to the appellant, and the failure to tell his solicitor of its existence at the interview in his presence, are all circumstances which, taken together, could well have had the consequence that the confession was indeed unreliable, or that the record of it was unreliable."
[35]Each of those observations seems to us pertinent in this case, with the additional observation that it is all the more surprising that the alleged admission was not put to the appellant at his second interview when the question of the conversation overheard in the cell was canvassed with him.[36]So far as s.78 of PACE is concerned, as is again conceded by Mr Duff, the admission was obtained in circumstances which amounted to an interview for the purposes of Code C of PACE in its 1985 form. DC Bowers specifically stated in evidence that he had put the question to the appellant after he had arrested him (though without cautioning him) and that the question put was intended to elicit from the appellant whether or not he had participated in the robbery recently committed. He was thus recognising that the question was not asked to decide whether or not to effect arrest but amounted to the questioning of a suspect after arrest about the offence of which he was suspected: see R -v- Goddard [1994] Crim LR 46 at 47. In this connection it is of course the nature and not the length of the questions which primarily determines whether there is an interview, and one question and one answer are capable of amounting to an interview if put for the purposes of obtaining evidence which may be given to the court in a prosecution: see R -v- Wayne Ward (1994) 98 Cr App R 337 at 341. That being so, there was a breach of Code C in that the interview record was not timed and signed by the maker, contrary to paragraph 11.5 of the 1985 version of Code C, nor, contrary to the requirements of paragraph 12.12, was the appellant ever afforded an opportunity to read or sign the record or indicate whether he considered it to be inaccurate. Finally, it is also pertinent to note that the admission was never put to the appellant during his subsequent interview under caution. While that was not a specific requirement of the 1985 version of the Code, it is a requirement of fairness now enshrined in paragraph 11.2A of the 1995 Code, a matter which the court can take into account as reflecting current thinking as to what is fair: see Wayne Ward above at p.340. Whether or not it was a breach of the 1985 Code, it was certainly a matter which could have been put to the judge by defence counsel as a requirement of fairness. Because of the manner in which the police dealt with the matter, the defendant never had an opportunity before he gave evidence at court to register his rejection or denial of the key admission relied on.[37]It has long been the approach of this court that significant and substantial breaches of PACE are likely to lead to the exercise of the court's discretion to exclude evidence under s.78 of PACE and, in particular, an admission or confession obtained following such breaches. In this case the breaches of the code were certainly substantial. The administration of a caution following arrest and before questioning concerning the offence is a basic provision of the Code. Further, the requirement to give as early as possible an opportunity to a defendant to check the accuracy or otherwise of any record made is a protection against subsequent inaccuracy or abuse. The breaches were not only significant by reason of the fact that they were substantial but had added significance because(a) the alleged admission was the only piece of evidence supporting the main plank of the Crown's case, namely that the appellant was the assailant in the robbery when the victim gave a totally inappropriate description, and(b) the necessary defence challenge to the evidence of the police officers meant that the appellant's bad character was bound to go in. This in turn was bound to have a prejudicial effect.[38]In our view, these matters plainly went to the fairness of the trial. Even making allowance for difficulties of recollection, we cannot regard the explanation of counsel for his failure to make an application to exclude evidence of the admission as adequate. In default of defence counsel advancing any reason other than his scepticism as to the likelihood of success, Mr Duff has sought to advance in argument a number of somewhat strained reasons of his own surmise to explain what he submits must have been a considered tactical decision by trial counsel. However, none of them is convincing, or supported by the statement of counsel. In our view, for the reasons we have set out above, had a submission been made by defence counsel for the exclusion of the admission, the judge would have been almost bound to grant it. Had he done so there would have been no evidence directly linking the appellant to the robbery, given the `all or nothing' basis upon which the matter was left to the jury, namely that they must be satisfied that he was the attacker, albeit the victim of the attack had given a clear but inappropriate description.[39]Mr Duff for the Crown has emphasised to us, as the judge also emphasised to the jury, the circumstances in which the appellant was arrested `red-handed' as it is put, and the cellblock conversation. He has also sought to assert that the appellant's story of `accidental' presence must have been false because, given the short time during which he says he was present in the house after his arrival, it is inconceivable that the police, who were, by 5.30pm already outside, watching the house and inspecting the car, would not have observed his arrival outside. We have considered these matters carefully and the manner in which they were treated in the summing-up.[40]So far as the apprehension of the appellant was concerned, given the absence of any other evidence directly linking him with participation in the robbery, there was nothing inherently incredible about the appellant's explanation for his presence in the house. Indeed, his initial, apparently unruffled, question to the police enquiring whether Joe [Quinnin] was with them went some way to support his version. Furthermore, he was not present in the room with the other two who were sorting the loot, for which he gave an explanation. The fact that, when he greeted the police, he was wearing gloves was of course suspicious. However, his explanation was that he had only just shed his sheepskin coat which was, indeed, found in the house. How far the presence of the sheepskin coat assisted the prosecution is problematic. It was simultaneously their case that the appellant had been wearing it in the get-away car and thus a link was established with the robbery; yet no witness at the scene of the robbery suggested that any of the robbers was wearing a sheepskin coat. The evidence of his presence at the house was therefore highly suspicious but scarcely decisive. So far as concerns the suggestion that, if the appellant's story were true, the police would have seen him arrive at Quinnin's house, the evidence as to the various timings was far too uncertain to render this a strong point and, indeed, the judge did not advance it as such in his summing-up to the jury.[41]Further matters particularly relied on by Mr Duff have included the defendant's effort to escape after the arrival of the police, the decision to offer no reply to most questions in interview and his later reliance upon an alibi in support of which he called a witness who was demonstrated to have been in contact with him whilst on remand. He has also placed particular reliance upon the cell conversation which was emphasised by the judge in summing-up as demonstrating `inside knowledge' of the robbery, even if not amounting to an indication of participation. In the light of the appellant's explanation that he had worn his sheepskin coat in the car on previous occasions, Mr Duff accepted that only light reliance could be placed upon the forensic evidence but he did not abandon it altogether.[42]These are all points of substantial force. The case was plainly a strong circumstantial case and the evidence of the cell conversation (if accepted by the jury) plainly demonstrated inside knowledge. Nonetheless, in our view, had the evidence of the alleged admission been excluded, the judge would have been obliged to give a much stronger warning than he did about the quality and, indeed, the absence of any identification evidence. While he summed-up on a basis which made clear to the jury the vigour of the challenge by the appellant to the evidence of the admission, he made no comment, as he might well have done, upon the absence of the caution or upon the requirements, let alone the breach, of the provisions of PACE and/or Code C. In the light of the terms of the alleged admission, it is impossible to avoid the conclusion that the jury must have placed considerable weight upon it in the absence of any identification evidence, and probably treated it as an admission of participation and guilt. The same is not necessarily so of the cell conversation which was equivocal in nature and certainly did nothing to establish that the appellant was the assailant, upon which issue the judge directed them that the question of guilt or innocence turned. Accordingly, we are not satisfied that the conviction was safe.[43]In the light of the conclusion we have reached upon the principal points advanced on this appeal, it becomes unnecessary to consider a number of subsidiary points relied on in argument by Mr Fitzgerald but which in our view do not amount to substantial grounds of appeal. We would only add that our decision has this unsatisfactory aspect. It is difficult to avoid the feeling that the appellant may well have derived a considerable advantage from failing to attend his original trial at which it had been intended that all of the participants in the robbery should be tried together, with the result that the jury would have heard the evidence in the round and had the benefit of hearing the cross-examination of all the defendants in a single trial. Further, as a result of what seems to us to have been the misjudgement of his counsel, we cannot ourselves know whether, as may well be the position, the jury would have found the case proved in any event on the basis of the admissible evidence. However, because of our lack of certainty upon that aspect, we are obliged to find that the conviction was unsafe. The appeal will therefore be allowed and the conviction quashed.

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